Exploring a Minefield: Private International Law in Latin America, Its Neocolonial Character, and Its Potentialities

Abstract

Comparative legal studies have critically approached processes such as the reception or transplant of law from Europe and the United States into Latin American countries, taking into account their neocolonial biases. I will consider this subject within the framework of the following question: To what extent is it possible for Latin American countries to free themselves from some harmful effects of the neocolonial character of law by resorting to that same law? Though in some respects, such a possibility may be rejected, it should not be seen beforehand as a binary question. I will take private international law as an example to approach some issues that lie behind that question. The reason I will use private international law, and the comparative law dimensions that are at its basis, is connected to criticisms that point to pluralism: neocolonial legal institutions do not properly consider the diversity of pre-state normative orders which exist in the region. Certainly, Latin American private international law has traditionally rejected any proper consideration of the diversity of pre-state normative orders which exist in the region. But, at the same time, private international law since its origin has tackled the existence of foreign normative orders, as well as the extent to which they can be accepted and applied.